56-101 Dams and sites; acquisition; eminent domain; procedure. - Nebraska Statutes

56-101. Dams and sites; acquisition; eminent domain; procedure.The power of eminent domain may be exercised by (1) any person who desires to erect a dam across any watercourse for the purpose of building a water grist, saw, carding, or fulling mill or of erecting any machinery to be propelled by water and who is the owner of the lands, on which he or she desires to build such mill or erect such machinery, on one side of such watercourse and not of the lands of the opposite side against or upon which he or she would abut the dam; (2) any person who is the owner of the lands on which he or she desires to erect any such mill or machinery on both sides of such watercourse; or (3) any person who erected such mill and milldam on his or her own lands. Any such person shall first obtain a permit from the Department of Natural Resources to use the waters of such watercourse for such purposes. The procedure to condemn property shall be exercised in the manner set forth in sections 76-704 to 76-724. SourceG.S.1873, c. 44, § 1, p. 472; Laws 1911, c. 82, § 1, p. 336; R.S.1913, § 3974; C.S.1922, § 3377; C.S.1929, § 56-101; R.S.1943, § 56-101; Laws 1951, c. 101, § 101, p. 494; Laws 2000, LB 900, § 244. Cross ReferencesEminent domain, other provisions conferring power of, see sections 46-246 and 46-247.Water use applications to Department of Natural Resources, see sections 46-233 to 46-243. Annotations1. Acquisition of rights2. Easement3. Abandonment of rights4. Procedure to assess damages5. Injunction6. Miscellaneous1. Acquisition of rightsParol license to enter land and construct dam or ditches is irrevocable after licensee has acted upon it by expenditure of money and labor, and used it for years without objection. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).Miller may acquire right of flowage by uninterrupted, continuous, and adverse possession and user. Gross v. Jones, 85 Neb. 77, 122 N.W. 681 (1909).Right of flowage acquired becomes appurtenant to mill. Johnson v. Sherman County Irr., Water-Power & Improvement Co., 63 Neb. 510, 88 N.W. 676 (1902).Millowner cannot raise dam so as to back water against milldam above him. Stumbo v. Seeley, 23 Neb. 212, 36 N.W. 487 (1888).2. EasementMill race, dam, and water are easements, and pass as appurtenances to mill property under sheriff's deed in foreclosure. Johnson v. Sherman County Irr., Water-Power & Improvement Co., 71 Neb. 452, 98 N.W. 1096 (1904).Mill race and dam are easements of school lands and sale of mill upon adjacent land carries these easements as appurtenances. Hoover v. Hale, 56 Neb. 67, 76 N.W. 457 (1898.)3. Abandonment of rightsRights acquired under this section are not granted in perpetuity, but may be lost by abandonment or nonuser. Gross v. Jones, 85 Neb. 77, 122 N.W. 681 (1909).4. Procedure to assess damagesProceeding may be instituted by either the erector of dam or landowner to assess the damages, and when brought, it is carried on as an ordinary action, including right to dismiss without prejudice. Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 (1928).5. InjunctionInjunction should issue only temporarily against owner of mill site until, by proper proceedings, right can be acquired to build dam. Gross v. Jones, 85 Neb. 77, 122 N.W. 681 (1909).Owner of mill and dam, who lowers water in such manner as to injure or destroy ice privileges of owner of land bordering on pond, is liable in damages but injunction will not be granted. Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 60 N.W. 717 (1894).Where ad quod damnum proceedings are comprised by owner leasing part of land, lessee acquired vested right in stream and water, and lessor may be enjoined from interfering. Culver v. Garbe, 27 Neb. 312, 43 N.W. 237 (1889).After a party has erected a mill and is operating same, landowner cannot maintain action to enjoin where proceedings to assess damages are pending. Nosser v. Seeley, 10 Neb. 460, 6 N.W. 755 (1880).6. MiscellaneousOn application by riparian owner solely to procure record of prior appropriation of water, Department of Roads and Irrigation was not authorized to fix height of dam that applicant may erect. Black Bros. Flour Mills v. Umphenour, 111 Neb. 218, 196 N.W. 123 (1923).Common-law rules in force except as modified by statute. Slattery v. Harley, 58 Neb. 575, 79 N.W. 151 (1899).Object of this act is to utilize water power of state, not create monopolies, and should be reasonably construed. Seeley v. Bridges, 13 Neb. 547, 14 N.W. 524 (1882).